Commonwealth of Kentucky v. Andrew McMichael

RENDERED: MARCH 23, 2023
TO BE PUBLISHED
Supreme Court of Kentucky
2021-SC-0207-DG
2021-SC-0572-DG
COMMONWEALTH OF KENTUCKY APPELLANT/CROSS-APPELLEE
ON REVIEW FROM COURT OF APPEALS
V. NO. 2020-CA-0515
JEFFERSON CIRCUIT COURT NO. 19-CR-000882-2
ANDREW MCMICHAEL APPELLEE/CROSS-APPELLANT
OPINION OF THE COURT BY JUSTICE LAMBERT
AFFIRMING
On October 22, 2019, Andrew McMichael (McMichael) pled guilty to theft
by unlawful taking over $500, but less than $10,000. This charge stemmed
from McMichael and a co-defendant removing several pieces of stainless-steel
siding from an old, kitchen-less diner and selling them for $155.81, which they
split between themselves. As part of his plea agreement, McMichael agreed to
pay restitution to the diner’s owner, Mosely Putney (Putney). Because
McMichael and the Commonwealth could not agree to a restitution sum, the
trial court held a combined sentencing and restitution hearing on March 9,
2020.
During the restitution hearing, Putney was the Commonwealth’s sole
witness. Putney testified that he purchased the diner in early 1990s for
“around $25,000.” The diner is a 1950s Mountain View modular diner with
stainless steel siding that was custom formed onto it when the diner was
assembled. Although the diner lacked a kitchen, Putney testified that he
originally intended to renovate the diner and make it a restaurant. However,
those intentions were never brought to fruition, and the diner has sat on an
outdoor storage lot exposed to the elements for the last fifteen years and is in a
significant state of disrepair. Putney testified that, prior to the theft, he
believed he could have sold the diner for $30,000 - $60,000. He provided no
documentation to support this estimate and testified that he never had a buyer
for that amount.
Putney testified that, although much of the siding was later recovered, it
was bent during the theft in such a way that it cannot be re-attached to the
diner. Putney therefore had a sheet metal and roofing contracting company
provide estimates to replace the siding. The first estimate the company
provided was the cost to replace only the siding that was removed by
McMichael and his co-defendant. The company estimated this would cost a
total of $62,493. The second estimate was the cost to replace both the stolen
siding and the original siding so that all of the siding would “match.” This
estimate was $221,800.
On cross-examination, defense counsel pointed out that the criminal
complaint in this case stated, “value of diner $3,000,” and that this amount
was the basis for the underlying charge. Putney denied telling the police that
the diner was worth $3,000, and instead claimed that he told the police that
amount because he believed that was the value of the stolen siding.
2
Nevertheless, he acknowledged that he “threw out a number” because he did
not know the actual scrap value of the siding. He provided no documentation
or any other evidentiary support to prove the diner’s value prior to the siding
being removed or its value after the siding was removed.
McMichael requested that restitution be set at either $155.81, the
amount for which he sold the siding, or the $3,000 amount set forth in the
criminal complaint. He further contended that the diner was not worth what
Putney claimed as, even before the siding was removed, its current state would
require significant repair both inside and out to bring it back to a useable
condition. The Commonwealth disagreed, arguing that Putney was competent
to testify and that his testimony was supported by the estimates provided by
the contracting company. The Commonwealth requested that restitution be set
at $62,493, the amount required to replace the stolen siding. The trial court
agreed with the Commonwealth and ordered McMichael to pay $62,493 in
restitution jointly and severally with his co-defendant. McMichael appealed the
restitution ruling to the Court of Appeals.
The Court of Appeals reversed, holding that there was insufficient
evidence to support the restitution amount.1 In so ruling, the unanimous
Court of Appeals panel provided much needed guidance on how trial courts
may reliably determine restitution in cases in which restitution is warranted
1 McMichael v. Commonwealth, No. 2020-CA-0515-MR, 2021 WL 1045482 (Ky.
App. Mar. 19, 2021).
3
due to damage to the victim’s property.2 Neither the Commonwealth nor
McMichael challenge the framework established by the Court of Appeals, and
we therefore need not discuss it at length. Suffice it to say, the Court of
Appeals held that
pre- and post-incident values must be established and their
difference serve as a cap on recovery. Here, little or no effort was
made to establish pre- or post-theft values of the diner or its
siding, much less calculate their difference to serve as a cap on
restitution. We believe these values must be determined, and the
cap applied, to set restitution which comports with its intent in
order to obtain substantial justice.
Yet another consideration the trial court must apply when
calculating restitution is the value of the recovered siding.
Although Putney testified the siding was “worthless,” presumably
when it came to re-attaching it for use on the diner's exterior, it
undoubtedly had some value, even if only as scrap metal.
McMichael is entitled to an offset against his restitution by the
value of the recovered siding. . . . Consequently, the value of the
returned siding must be established and deducted from the
amount of otherwise allowable restitution.3
As noted, neither of the parties challenge this framework. Rather, the
sole argument raised by the Commonwealth is that “the Court of Appeals
ignored controlling precedent when it determined a property owner’s testimony,
by itself, was insufficient to establish a restitution award.” The full language
from the Court of Appeals’ opinion to which the Commonwealth refers states as
follows:
2 Kentucky Revised Statute (KRS) 532.350(1)(a) (“‘Restitution’ means any form
of compensation paid by a convicted person to a victim for counseling, medical
expenses, lost wages due to injury, or property damage and other expenses suffered by
a victim because of a criminal act[.]”) (emphasis added).
3 McMichael, 2021 WL 1045482, at *8.
4
Kentucky courts have addressed the establishment of value of
stolen property in the context of determining the proper crime
charged. In Allen v. Commonwealth, 148 Ky. 327, 146 S.W. 762(1912), the Court observed:
In cases like this, where the degree of the offense
depends upon the value of the property, it often
happens that the witnesses will differ as to its value;
and, when there is a difference of opinion as to this
matter, it is for the jury to form their own conclusion
from the evidence as to the value of the property
stolen. Evidence of the cost price of an article is not
conclusive as to its value; nor, indeed, is evidence as to
its selling price. The test by which the degree of guilt
of the accused is to be determined is the value of the
article at the time it was stolen, and this value is to be
arrived at by the jury from a consideration of all the
facts and circumstances shown in the evidence. Where
the article stolen is in general use, and has what might
be called a standard market value, of course the best
evidence of the value of such an article is the price at
which it sells in the open market. But where the
article does not appear to have a standard value in the
open market, or its standard value is not shown, the
evidence of its value must be arrived at from facts and
circumstances testified to by witnesses who qualify
themselves to speak as to its value.
Id. at 762-63 (emphasis added). Here, the question of the stainless
steel's value is not needed to determine the degree of the offense,
as that had already been agreed upon; rather, the determination of
its value goes to the issue of restitution. Since the stainless steel
at issue herein does not appear to have a standard value in the
open market, and its standard value was not shown, the evidence
of its value must be determined from facts and circumstances
testified to by a witness who qualifies himself to speak to its value.
The sole witness for the Commonwealth was the diner's owner,
Putney; no evidence of his qualifications to testify as to the diner's
worth, beyond merely being its owner, was presented.
As previously noted, in [Fields v. Commonwealth, 123 S.W.3d 914(Ky. App. 2003)], we held that “[t]he due-process clauses of the
federal constitution require that sentences not be imposed on the
basis of material misinformation, and that facts relied on by the
5
sentencing court have some minimal indicium of reliability beyond
mere allegation.” Fields, 123 S.W.3d at 917 (emphasis added)
(internal quotation marks and footnotes omitted). Following Fields,
in [Wiley v. Commonwealth, 348 S.W.3d 570, 575 (Ky. 2010)], our
Supreme Court further held that “the record must establish a
factual predicate for the restitution order.” Wiley, 348 S.W.3d at
575.
“In the ordinary case, the proper yardstick is the market value of
the property at the time and place of the larceny; the original cost
of the property or any special value to the owner personally is not
considered.” 3 CHARLES E. TORCIA, GRADES OF LARCENY—
DETERMINATION OF VALUE, WHARTON'S CRIMINAL LAW § 345
(15th ed. 2020) (footnotes omitted). Herein, Putney offered nothing
more than his mere opinion of the worth of both the metal and the
diner. There was no evidence of the current value of the diner or of
the stainless steel at the time it was taken. This is simply
insufficiently detailed or reliable to establish a fair restitution
computation; due process requires more.4
The Commonwealth interprets the foregoing to hold that an owner of
damaged property “must provide heightened qualifications—seemingly
requiring specific qualifications beyond being an owner with experience and
knowledge of the property—and that personal knowledge is no longer sufficient
to establish value.” In turn, the Commonwealth argues that this holding
ignores established precedent that an owner’s testimony is competent evidence
4 Id. *3-4.
6
regarding the value of stolen property, citing, in relevant part,5 Poteet v.
Commonwealth,6 Mitchell v. Commonwealth,7 and Brewer v. Commonwealth.8,
We disagree with the Commonwealth’s interpretation of the Court of
Appeals’ holding, and further hold that it comports with each of the precedents
cited by the Commonwealth.
To begin, we do not construe the quoted language from Allen that “where
the article does not appear to have a standard value in the open market, or its
standard value is not shown, the evidence of its value must be arrived at from
facts and circumstances testified to by witnesses who qualify themselves to
speak as to its value,” to mean that the owners of damaged property are
subject to higher scrutiny regarding their ability to testify as to the value of
their property. Rather, it simply means that the owner must be able to provide
5 The Commonwealth also relies on Commonwealth v. Reed, 57 S.W.3d 269 (Ky.
2001), and Meyer v. Commonwealth, 393 S.W.3d 46 (Ky. App. 2013). Neither case
supports its argument.
In Reed, there was no dispute as to the total value of the stolen property. 57
S.W.3d at 271. Instead, the issue was whether the Commonwealth demonstrated that
the specific items ultimately found in the defendant’s possession were worth the
requisite amount to support the charge against him. Id.
In Meyer, the defendant stole two projectors from the University of Kentucky.
393 S.W.3d at 55-6. The evidence as to their value came not from their owner, but
from an employee of the university who worked in Information Technology in
Audio/Visual Services. Id. at 56.
6 556 S.W.2d 893 (Ky. 1977).
7 538 S.W.3d 326 (Ky. App. 2017).
8 632 S.W2d 456 (Ky. App. 1982).
7
“reliable facts [and circumstances] . . . [that provide] some minimal indicum of
reliability beyond mere allegation.”9 This is supported by the Court of Appeals’
later statement that “Putney offered nothing more than his mere opinion of the
worth of both the metal and the diner.”
Indeed, we have long held that “the testimony of the owner of stolen
property is competent evidence as to the value of the property.”10 Putney could
accordingly, theoretically, be qualified to testify to the value of the diner before
and after the theft, and as to the value of the recovered stainless-steel siding.
But to do so his testimony must be supported by facts and circumstances
providing some minimal indicum of reliability beyond mere allegation. This, we
discern, is the “qualification” the Court of Appeals refers to.
For example in Poteet, the Defendant was convicted of receiving stolen
property valued at more than $100.11 On appeal, the defendant asserted that
there was insufficient evidence as to the value of the stolen property, in
particular: a welding wrench, a welding helmet, an 18-inch pipe wrench, and a
“chain hoist come along.”12 The owner of the items testified that the welding
wrench was worth $30 and the helmet was worth $15.13 More importantly for
9 Wiley v. Commonwealth, 348 S.W.3d 570, 575 (Ky. 2010) (“When ordering
restitution, a trial court must base an award on reliable facts. . . . although a lower
standard of due process applies at sentencing, the facts relied on by the court must
have some minimal indicium of reliability beyond mere allegation.”).
10 Reed, 57 S.W.3d at 270 (citing Poteet, 556 S.W.2d at 896).
11 556 S.W.2d, at 894.
12 Id. at 895-96.
13 Id. at 894.
8
our purposes, the victim testified that the chain hoist come along was worth
$130, supported by his insurance claim on that item for $130.14 The Poteet
Court held that “there was sufficient evidence to show that [the victim’s] stolen
property knowingly received by [the defendant] was of the value of more than
$100.”15 Accordingly, the owner’s testimony was more than just a mere
allegation as to their value: he provided proof that at least one of the items was
worth $130 in the form of an insurance claim. This would of course mean that
the aggregate value of all the items taken exceeded $100.
Similarly, in Mitchell, the defendants stole several pieces of jewelry from
the victim.16 At their restitution hearing, the victim testified that “she obtained
the value of the missing jewelry listed by researching their value on
Amazon.com and that she determined the value by using the median prices for
the items.”17 On appeal, the defendants argued that the victim’s testimony as
to the value of the jewelry based on her internet research was insufficient to
constitute substantial evidence, and that “the Commonwealth was required to
prove their value with photographs, insurance records, receipts or other
documented proof of the value and quality of the missing jewelry.”18 The Court
of Appeals disagreed:
Even in the guilt phase, the Supreme Court has ruled that the
testimony of the owner of stolen property is competent evidence as
14 Id.
15 Id. at 896 (emphasis added).
16 Mitchell, 538 S.W.3d at 328.
17 Id.18 Id. at 329.
9
to the value of the property. The same is true in restitution
hearings where the standard is preponderance of the evidence, not
the reasonable doubt standard. While it may have been preferable
for the Commonwealth to produce documentation, it was not
required. . . . If [the defendants’ argument] was taken to its logical
conclusion, restitution could never be imposed for an item of
jewelry that had not been photographed, appraised, measured,
weighed and insured. Although they have pointed to some
weaknesses in the Commonwealth’s evidence, [the victim] had
sufficient reliable information, based on her memory and the
photographs, to find comparable items on the Internet. We are
required to give “due regard ... to the opportunity of the trial court
to judge the credibility of the witnesses.” [CR] 52.01; as a sign of
her reliability, [the victim] did not choose the highest-priced
Internet comparables in assigning values to her jewelry.19
Finally, in Brewer, a case from 1982, the defendant was convicted of
stealing a two-month-old 1980 Suzuki motorcycle, and argued on appeal that
there was insufficient evidence that the motorcycle was worth more than
$100.20 The Court of Appeals disagreed, stating:
The owner of the motorcycle can certainly state his opinion as to
the value of his property. His testimony was not unreasonable
since the motorcycle, only two months old when stolen, had only
3000 miles on it and was unwrecked. There was sufficient
descriptive testimony about the motorcycle which would enable the
jury to make an informed conclusion that the cycle was worth
more than $100.00 in value.21
Accordingly, the particular circumstances in Brewer were such that the
owner’s testimony as to the motorcycle’s value exceeding $100 was sufficient.
19 Id. (internal quotation marks and citations omitted).
20 632 S.W.2d at 457.
21 Id.10
In this case, Putney provided absolutely no evidence as to the diner’s
worth at the time of the theft, the diner’s worth after the theft, or the value of
the recovered stainless-steel, let alone evidence or circumstances that would
support those respective values. On remand, if he can provide some reliable
evidence as to those values, he would certainly be qualified to testify as to
those amounts given that he is the owner of the diner. At bottom, we do not
interpret the Court of Appeals as altering in anyway our precedents that state
an owner may give testimony as to the value of his or her property. Instead,
the Court of Appeals found fault in the fact that Putney had provided nothing
to suggest that he was qualified to testify as to the value of the diner before and
after the theft or the value of the recovered sheet metal. This is consistent with
our precedents as provided above.
Consequently, we decline McMichael’s invitation to uphold the Court of
Appeals’ holding on the basis that it drew a distinction between items that are
“merchandise,” i.e., items found in “standard markets” that have easily
discernable values—televisions, jewelry, tools, etc.—and items that are not
found in standard markets like the antique diner at issue herein. We further
decline to hold that owners of such unique property should be “qualified” to
testify to the value of their property under the factors espoused in Summe v.
Gronotte.22 This would needlessly complicate restitution determinations
because, regardless of what the item at issue in a given case is, a restitution
22 357 S.W.3d 211 (Ky. 2011) (relying on Commonwealth, Dep’t of Highways v.
Slusher, 371 S.W.2d 851 (Ky. 1963)). Slusher held that “[a] witness, to be qualified to
testify as to the value of realty, must know the property to be valued and the value of
11
determination must be based on reliable facts that have some minimal indicum
of reliability beyond mere allegation. Such evidence was altogether absent in
this case, and that absence formed the basis for the Court of Appeals’ holding.
CONCLUSION
Based on the foregoing, we affirm the Court of Appeals and remand this
case to Jefferson Circuit Court for a retrial on restitution consistent with both
this opinion and that of the Court of Appeals.
VanMeter, C.J.; Bisig, Conley, Keller, Lambert, and Nickell, JJ., sitting.
All concur. Thompson, J., not sitting.
COUNSEL FOR APPELLANT/CROSS-APPELLEE:
Daniel J. Cameron
Attorney General of Kentucky
Kristin Leigh Conder
Assistant Attorney General
COUNSEL FOR APPELLEE/CROSS-APPELLANT:
Christopher Barrett Thurman
Louisville Metro Public Defender
Leo Gerard Smith
Louisville Metro Public Defender
the property in the vicinity, must understand the standard of value, and must be
possessed of the ability to make a reasonable inference.”
12